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Exhibit 10.73
MORGANTOWN MALL ASSOCIATES LIMITED PARTNERSHIP
(Grantor)
to
XXXXXXX X. XXXXXX
(Trustee)
for the use and benefit of
THE CAPITAL COMPANY OF AMERICA LLC
(Beneficiary)
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DEED OF TRUST, ASSIGNMENT OF LEASES
AND RENTS AND SECURITY AGREEMENT
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Dated: As of September 1, 1998
Property: Morgantown Mall and Morgantown Commons
District of Grant
County of Monongalia
State of West Virginia
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DOCUMENT PREPARED BY AND WHEN RECORDED, RETURN TO:
Xxxxxx X. Xxxxxxxxxx, Esq.
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
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DEED OF TRUST, ASSIGNMENT OF LEASES
AND RENTS AND SECURITY AGREEMENT
THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS AND
SECURITY AGREEMENT (this "DEED OF TRUST"), is made as of September [1,] 1998,
among MORGANTOWN MALL ASSOCIATES LIMITED PARTNERSHIP, an Ohio limited
partnership, ("GRANTOR"), having its principal place of business at c/o Glimcher
Properties Limited Partnership, 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000,
XXXXXXX X. XXXXXX, a resident of Berkeley County ("TRUSTEE"), whose address is
Bowles, Rice, McDonald, Xxxxx & Love, PLLC, 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxx Xxxxxxxx 00000, and THE CAPITAL COMPANY OF AMERICA LLC, a Delaware limited
liability company ("BENEFICIARY"), having its principal place of business at Two
World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx 00000.
W I T N E S
S E T H:
WHEREAS:
A. Grantor is the owner of fee simple title to those certain
parcels of real property located in the District of Grant, County of Monongalia,
State of West Virginia, and more particularly described on EXHIBIT A attached
hereto and incorporated herein by this reference (collectively, the "PREMISES"),
and the buildings, structures, fixtures, additions, enlargements, extensions,
modifications, repairs, replacements and other improvements now or hereafter
located thereon (the "IMPROVEMENTS"); and
B. Pursuant to that certain Loan Agreement dated as of the
date hereof (the "LOAN AGREEMENT"), between Grantor and Beneficiary, Beneficiary
is making a loan (the "LOAN") to Grantor in the original principal amount of
$58,350,000 and Grantor has executed that certain Note (as defined in the Loan
Agreement) evidencing the Loan (the "NOTE"), which Note is made payable to the
order of Beneficiary, together with interest thereon, with final payment being
due on or before the Stated Maturity Date (all capitalized terms not otherwise
defined herein shall have the meaning set forth in the Loan Agreement); and
C. To induce Beneficiary to make the Loan to Grantor and to
further secure payment of the Note, together with interest thereon, and all
other sums due hereunder and under the other Loan Documents, the parties desire
to enter into this Deed of Trust.
NOW, THEREFORE, in consideration of the mutual premises herein
contained and other good and valuable consideration, the receipt and legal
sufficiency whereof are hereby acknowledged, Grantor hereby agrees:
THAT, IN ORDER to secure the payment of an indebtedness in the
principal sum of FIFTY-
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EIGHT MILLION THREE HUNDRED FIFTY THOUSAND AND 00/100 Dollars ($58,350,000), and
all other sums which may or shall become due hereunder or under the Note or any
of the other documents evidencing, securing or executed in connection with the
Loan (such other documents, including, without limitation, the Loan Agreement
and that certain Assignment of Leases and Rents dated as of the date hereof
given by Grantor to Beneficiary with respect to the Premises (as such assignment
may be amended from time to time, the "ASSIGNMENT"), together with the Note and
this Deed of Trust (as any of the same may, from time to time, be modified,
amended or supplemented) being hereinafter collectively referred to as the "LOAN
DOCUMENTS"), and including the costs and expenses of enforcing any provision of
the Note, this Deed of Trust or any of the other Loan Documents (all such sums
being hereinafter collectively referred to as the "DEBT"), and in order to
charge with such performance and with such payments the Premises, the
Improvements and the other property hereinafter described and the rents,
revenues, issues, income and profits thereof, GRANTOR HAS GRANTED, BARGAINED,
SOLD, CONVEYED, TRANSFERRED AND ASSIGNED, AND BY THESE PRESENTS DOES HEREBY
IRREVOCABLY GRANT, BARGAIN, SELL, CONVEY, TRANSFER AND ASSIGN, TO TRUSTEE, ITS
SUCCESSORS AND ASSIGNS, IN TRUST, WITH POWER OF SALE AND RIGHT OF ENTRY AND
POSSESSION, the Premises and the Improvements, together with all right, title,
interest and estate of Grantor now owned, or hereafter acquired, in and to the
following property, rights, interests and estates (the Premises, the
Improvements and the property, rights, interests and estates hereinafter
described are collectively referred to herein as the "MORTGAGED PROPERTY"):
(a) all easements, rights-of-way, strips and gores of land,
streets, ways, alleys, passages, sewer rights, water, water courses, water
rights and powers, air rights and development rights, all rights to oil, gas,
minerals, coal and other substances of any kind or character, and all estates,
rights, titles, interests, privileges, liberties, tenements, hereditaments and
appurtenances of any nature whatsoever, in any way belonging, relating or
pertaining to the Premises and the Improvements and the reversion and
reversions, remainder and remainders, and all land lying in the bed of any
street, road, highway, alley or avenue, opened, vacated or proposed, in front of
or adjoining any part of the Premises, to the center line thereof and all the
estates, rights, titles, interests, dower and rights of dower, curtsey and
rights of curtsey, property, possession, claim and demand whatsoever, both at
law and in equity, of Grantor of, in and to the Premises and the Improvements
and every part and parcel thereof, with the appurtenances thereto;
(b) all machinery, furniture, furnishings, equipment, computer
software and hardware, fixtures (including, without limitation, all heating, air
conditioning, plumbing, lighting, communications and elevator fixtures), and
other property of every kind and nature, whether tangible or intangible,
whatsoever owned by Grantor, or in which Grantor has or shall have an interest,
now or hereafter located upon the Premises and the Improvements, or appurtenant
thereto, and usable in connection with the present or future operation and
occupancy of the Premises and the Improvements and all building equipment,
materials and supplies of any nature whatsoever owned by Grantor, or in which
Grantor has or shall have an interest, now or hereafter located upon the
Premises and the Improvements, or appurtenant thereto, or usable in connection
with the present or
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future operation, enjoyment and occupancy of the Premises and the Improvements
(hereinafter collectively referred to as the "EQUIPMENT"), including any leases
of any of the foregoing, any deposits existing at any time in connection with
any of the foregoing and the proceeds of any sale or transfer of any of the
foregoing, and the right, title and interest of Grantor in and to any of the
Equipment that may be subject to any "security interests" as defined in the
Uniform Commercial Code, as adopted and enacted by the State or States where any
of the Equipment is located (the "UNIFORM COMMERCIAL CODE"), superior in lien to
the lien of this Deed of Trust;
(c) all awards or payments, including interest thereon, that
may heretofore and hereafter be made with respect to the Premises and the
Improvements, whether from the exercise of the right of eminent domain or
condemnation (including, without limitation, any transfer made in lieu of or in
anticipation of the exercise of said rights), or for a change of grade, or for
any other injury to or decrease in the value of the Premises and the
Improvements;
(d) all current and future leases, rental agreements,
occupancy agreements and other agreements of whatever form now or hereafter
affecting the use, enjoyment or occupancy of, or the conduct of any activity
upon or in, all or any part of the Premises and the Improvements, including any
guaranties, extensions, renewals, replacements or modifications thereof
(hereinafter collectively referred to as the "LEASES") and all rents, rent
equivalents, moneys payable as damages or in lieu of rent or rent equivalents,
royalties (including, without limitation, all oil and gas or other mineral
royalties and bonuses), income, receivables, receipts, revenues, deposits
(including, without limitation, security, utility and other deposits), accounts,
cash, issues, profits, charges for services rendered, and other consideration of
whatever form or nature received by or paid to or for the account of or benefit
of Grantor or its agents or employees from any and all sources arising from or
attributable to the Premises and the Improvements (the "RENTS"), together with
all proceeds from the sale or other disposition of the Leases and the right to
receive and apply the Rents to the payment of the Debt;
(e) all proceeds of and any unearned premiums on any insurance
policies covering the Premises, the Improvements and the Equipment, including,
without limitation, the right to receive and apply the proceeds of any
insurance, judgments, or settlements made in lieu thereof, for damage to the
Premises, the Improvements or the Equipment;
(f) all accounts, escrows, documents, instruments, chattel
paper, claims, deposits and general intangibles, as the foregoing terms are
defined in the Uniform Commercial Code, and all franchises, trade names,
trademarks, symbols, service marks, books, records, plans, specifications,
designs, drawings, permits, consents, licenses, management agreements, contract
rights (including, without limitation, any contract with any architect or
engineer or with any other provider of goods or services for or in connection
with any construction, repair or other work upon the Premises, the Improvements
or the Equipment and all rights, interest and privileges which Grantor has or
may have as developer or declarant under any covenants, restrictions or
declarations now or hereafter relating to any part of the Premises or the
Improvements), approvals,
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actions, refunds of real estate taxes and assessments (and any other
governmental impositions related to any part of the Premises, the Improvements
or the Equipment), and causes of action that now or hereafter relate to, are
derived from or are used in connection with the Premises, the Improvements or
the Equipment, or the use, operation, maintenance, occupancy or enjoyment
thereof or the conduct of any business or activities thereon (hereinafter
collectively referred to as the "INTANGIBLES");
(g) all options to purchase and rights of first refusal to
purchase and acquire a fee estate, easement interest or other real property
right to land, both vacant and improved, adjoining any part of the Premises now
or hereafter in effect (hereinafter collectively referred to as the "Options");
(h) the right, in the name and on behalf of Grantor, to appear
in and defend any action or proceeding brought with respect to any part of the
Premises, the Improvements, the Equipment, the Leases, the Intangibles or the
Options and to commence any action or proceeding to protect the interest of
Beneficiary in any part of the Premises, the Improvements, the Equipment, the
Leases, the Intangibles or the Options; and
(i) all proceeds, products, offspring, rents and profits from
any of the foregoing, including, without limitation, those from sale, exchange,
transfer, collection, loss, damage, disposition, substitution or replacement of
any of the foregoing.
TO HAVE AND TO HOLD the above granted and described Mortgaged
Property unto Trustee and his substitutes or successors and assigns, forever,
and Grantor hereby binds itself and its heirs, executors, administrators,
personal representatives, successors and assigns to warrant and forever defend
the Mortgaged Property unto Trustee, his substitutes or successors and assigns,
against the claim or claims of all persons claiming or to claim the same or any
part thereof;
PROVIDED, HOWEVER, these presents are upon the express
condition that if Grantor shall well and truly pay to Beneficiary the Debt at
the time and in the manner provided in the Note, the Loan Agreement, this Deed
of Trust and the other Loan Documents and shall well and truly abide by and
comply with each and every covenant and condition set forth herein, in the Note,
in the Loan Agreement and in the other Loan Documents in a timely manner, then,
and in that event only, all rights under this Deed of Trust shall terminate
(except to the extent expressly provided herein with respect to indemnifications
and other rights which are to continue following the release hereof) and the
Mortgaged Property shall become wholly free of the liens, security interests,
conveyances and assignments created and evidenced hereby, and such liens and
security interests shall be released by Beneficiary in due form at Grantor's
cost.
AND, for the purpose of further securing the Debt and for the
protection of the security of this Deed of Trust, for so long as the Debt or any
part thereof remains unpaid, Grantor represents and warrants to and covenants
and agrees with Beneficiary as follows:
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GENERAL PROVISIONS
1. PAYMENT OF DEBT AND INCORPORATION OF COVENANTS, CONDITIONS
AND AGREEMENTS. Grantor shall pay the Debt at the time and in the manner
provided in the Note, the Loan Agreement, this Deed of Trust and the other Loan
Documents. All the covenants, conditions and agreements contained in the Note,
the Loan Agreement and the other Loan Documents are hereby made a part of this
Deed of Trust to the same extent and with the same force as if fully set forth
herein.
2. WARRANTY OF TITLE. Grantor hereby warrants that: (a)
Grantor has good, marketable and insurable title to the Mortgaged Property; (b)
Grantor has the full power, authority and right to execute, deliver and perform
its obligations under this Deed of Trust and to encumber, grant, bargain, sell,
convey, assign and mortgage the Mortgaged Property in the manner and form hereby
done or intended; (c) Grantor possesses an unencumbered fee simple estate in the
Premises and the Improvements and Grantor owns the Mortgaged Property free and
clear of all liens, encumbrances and charges whatsoever except for those
exceptions shown in the title insurance policy insuring the lien of this Deed of
Trust; and (d) this Deed of Trust is and will remain a valid and enforceable
first lien on and security interest in the Mortgaged Property, subject only to
those exceptions shown in the title insurance policy insuring the lien of this
Deed of Trust. Grantor shall forever warrant, defend and preserve such title and
the validity and priority of the lien of this Deed of Trust and shall forever
warrant and defend the same to Trustee and Beneficiary against the claims of all
persons whomsoever. The foregoing warranty of title shall survive the
foreclosure of this Deed of Trust and shall inure to the benefit of and be
enforceable by Beneficiary in the event Beneficiary acquires title to the
Mortgaged Property pursuant to any foreclosure.
3. INSURANCE.
(a) Grantor, at its sole cost and expense, for the mutual
benefit of Grantor and Beneficiary, shall obtain and maintain during the entire
term of this Deed of Trust policies of insurance against loss or damage by fire
and lightning and against loss or damage by all other risks and hazards as
required and in accordance with the terms and provisions of Section 7.1 of the
Loan Agreement.
(b) If the Mortgaged Property shall be damaged or destroyed,
in whole or in part, by fire or other casualty (a "CASUALTY"), Grantor shall
give prompt written notice thereof to Beneficiary. Following the occurrence of a
Casualty, Grantor, regardless of whether insurance proceeds are available,
(unless such insurance proceeds have been used to repay the Debt in full), shall
promptly proceed to restore, repair, replace or rebuild the Mortgaged Property
to be of at least equal value and of substantially the same character as prior
to such damage or destruction, all to be effected in accordance with applicable
law. All amounts to be paid in connection with a Casualty under such policies
shall be governed by the terms and provisions of the Loan Agreement.
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4. PAYMENT OF TAXES, ETC. Subject to Section 5.1(b) of the
Loan Agreement, Grantor shall pay all taxes, assessments, water rates and sewer
rents now or hereafter levied or assessed or imposed against the Mortgaged
Property or any part thereof (the "TAXES"), and all maintenance charges, ground
rents, impositions other than Taxes and other charges, including, without
limitation, vault charges and license fees for the use of vaults, chutes and
similar areas adjoining the Premises, now or hereafter levied or assessed or
imposed against the Mortgaged Property or any part thereof (the "OTHER
Charges"), before delinquency; PROVIDED, however, that Grantor's obligation to
directly pay Taxes shall be suspended for so long as Grantor complies with the
terms and provisions of Section 7.3 of the Loan Agreement.
5. CONDEMNATION.
(a) Grantor shall promptly give Beneficiary written notice of
the actual or threatened commencement of any condemnation or eminent domain
proceeding against the Premises or the Improvements or any part thereof (a
"CONDEMNATION") and shall deliver to Beneficiary copies of any and all papers
served in connection with such Condemnation. Following the occurrence of a
Condemnation, Grantor, regardless of whether an Award (as hereinafter defined)
is available, (unless such Award has been used to repay the Debt in full), shall
promptly proceed to restore, repair, replace or rebuild the Mortgaged Property
to the extent practicable to be of at least equal value and of substantially the
same character as prior to such Condemnation, all to be effected in accordance
with applicable law.
(b) Beneficiary is hereby irrevocably appointed as Grantor's
attorney-in-fact, coupled with an interest, with exclusive power to collect,
receive and retain any award or payment ("AWARD") for any taking accomplished
through a Condemnation and to make any compromise or settlement in connection
with such Condemnation, subject to the provisions of this Deed of Trust and
section 7.1.3(b) of the Loan Agreement. Notwithstanding any taking in connection
with a Condemnation by any public or quasi-public authority (including, without
limitation, any transfer made in lieu of or in anticipation of such a
Condemnation), Grantor shall continue to pay the Debt at the time and in the
manner provided for in the Note, the Loan Agreement, this Deed of Trust and the
other Loan Documents and the Debt shall not be reduced unless and until any
Award shall have been actually received and applied by Beneficiary to expenses
of collecting the Award and to discharge of the Debt. Beneficiary shall not be
limited to the interest paid on the Award by the condemning authority but shall
be entitled to receive out of the Award interest at the rate or rates provided
in the Note. All amounts to be paid in connection with a Condemnation shall be
governed by the terms and provisions of the Loan Agreement.
6. LEASES AND RENTS.
(a) Grantor does hereby irrevocably, absolutely and
unconditionally assign to Beneficiary, its successors and assigns, all of
Grantor's right, title and interest in and to all current and future Leases and
Rents, it being intended by Grantor that this assignment constitutes a present,
absolute and unconditional assignment and not an
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assignment for additional security only. Such assignment to Beneficiary shall
not be construed to bind Beneficiary to the performance of any of the covenants,
conditions or provisions contained in any such Lease or otherwise impose any
obligation upon Beneficiary. Grantor agrees to execute and deliver to
Beneficiary such additional instruments, in form and substance satisfactory to
Beneficiary, as may hereafter be requested by Beneficiary to further evidence
and confirm such assignment. Nevertheless, subject to the terms of this
Paragraph, Beneficiary grants to Grantor a license (revocable upon an Event of
Default) to operate and manage the Mortgaged Property; PROVIDED, however, that
all Rents shall be sent to a financial institution acceptable to Beneficiary for
deposit into an account designated and established by Beneficiary to secure
repayment of the Debt, all in accordance with the terms, covenants and
conditions contained in the Loan Agreement. Any Rents collected by Grantor shall
be held by Grantor in trust for the benefit of Beneficiary for use in the
payment of the Debt. Upon the occurrence of an Event of Default (as hereinafter
defined), without the need for notice or demand, the license granted to Grantor
herein shall automatically be revoked, and Beneficiary shall immediately be
entitled to take possession of the Leases and receive and apply all Rents,
whether or not Beneficiary enters upon or takes control of the Mortgaged
Property. Beneficiary is hereby granted and assigned by Grantor the right, at
its option, upon revocation of the license granted herein, to enter upon the
Mortgaged Property in person, by agent or by court-appointed receiver to collect
the Rents. Any Rents collected after the revocation of the license herein
granted may be applied toward payment of the Debt in such priority and
proportions as Beneficiary, in its sole discretion, shall deem proper.
Beneficiary is obligated to account only for such Rents as are actually
collected or received by Beneficiary. Neither the exercise by Beneficiary of any
rights under this Paragraph nor the application of any Rents to the Debt shall
cure or be deemed a waiver of any Event of Default hereunder. The assignment of
Rents hereinabove granted shall continue in full force and effect during any
period of foreclosure and/or redemption with respect to the Mortgaged Property.
Grantor has executed the Assignment covering all of the right, title and
interest of Grantor, as landlord, in and to any Leases relating to all or
portions of the Mortgaged Property. All rights and remedies granted to
Beneficiary under the Assignment shall be in addition to and cumulative of all
rights and remedies granted to Beneficiary hereunder.
(b) Grantor shall duly and punctually comply with its
obligations under Section 5.1(t) of the Loan Agreement which sets forth certain
covenants of Grantor with regard to leasing of the Mortgaged Property.
(c) All security deposits of tenants, whether held in cash or
any other form, shall not be commingled with any other funds of Grantor and, if
cash, shall be deposited by Grantor at such commercial or savings bank or banks
as may be reasonably satisfactory to Beneficiary. Any bond or other instrument
which Grantor is permitted to hold in lieu of cash security deposits under any
applicable legal requirements shall be maintained in full force and effect in
the full amount of such deposits unless replaced by cash deposits as hereinabove
described, shall be issued by an institution reasonably satisfactory to
Beneficiary, shall, if permitted pursuant to any legal requirements, name
Beneficiary as payee or mortgagee thereunder (or at Beneficiary's option, be
fully assignable to Beneficiary) and shall, in all respects, comply with any
applicable legal requirements and otherwise be reasonably satisfactory to
Beneficiary. Grantor shall, upon request, provide Beneficiary with evidence
reasonably satisfactory to Beneficiary of Grantor's compliance with the
foregoing. Following the occurrence and during the continuance of any Event of
Default, Grantor shall, upon Beneficiary's request, if permitted by any
applicable legal
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requirements, turn over to Beneficiary the security deposits (and any interest
theretofore earned thereon) with respect to all or any portion of the Mortgaged
Property, to be held by Beneficiary subject to the terms of the Leases.
7. PROPERTY MANAGEMENT AGREEMENT; LICENSES. Grantor hereby
represents and warrants to Beneficiary as follows:
(a) The Property Management Agreement, dated as of the date
hereof (the "MANAGEMENT AGREEMENT"), among Grantor, Glimcher Properties Limited
Partnership, as manager, and Glimcher Development Corporation, as services
provider, pursuant to which such manager operates the Mortgaged Property as
retail shopping centers, is in full force and effect and there is no default,
breach or violation existing thereunder by any party thereto and no event has
occurred (other than payments due but not yet delinquent) that, with the passage
of time or the giving of notice, or both, would constitute a default, breach or
violation by any party thereunder.
(b) Neither the execution and delivery of the Loan Documents,
the Grantor's performance thereunder, the recordation of this Deed of Trust, nor
the exercise of any remedies by Beneficiary, will adversely affect Grantor's
rights under the Management Agreement.
(c) The Property Management Agreement complies with the
requirements set forth in Section 5.1(v) of the Loan Agreement.
(d) All certifications, permits, licenses and approvals,
including, without limitation, certificates of completion and occupancy permits
required for the legal use, occupancy and operation of the Mortgaged Property as
retail shopping centers, have been obtained and are in full force and effect.
8. MAINTENANCE OF MORTGAGED PROPERTY. Grantor shall cause the
Mortgaged Property to be maintained in a good and safe condition and repair. The
Improvements and the Equipment shall not be removed, demolished or materially
altered (except for normal replacement of the Improvements and Equipment)
without the consent of Beneficiary, Grantor shall promptly comply with all laws,
orders and ordinances affecting the Mortgaged Property, or the use thereof,
including, without limitation, building and zoning ordinances and codes. Subject
to Section 3(b) and 5(a) hereof, Grantor shall promptly repair, replace or
rebuild any part of the Mortgaged Property that is destroyed by any Casualty, or
becomes damaged, worn or dilapidated, or that is affected by any Condemnation
and shall complete and pay for any structure at any time in the process of
construction or repair on the Premises. Grantor shall not initiate, join in,
acquiesce in or consent to any change in any private restrictive covenant,
zoning law or other public or private restriction, limiting or defining the uses
which may be made of the Mortgaged Property or any part thereof. If under
applicable zoning provisions the use of
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all or any portion of the Mortgaged Property is or shall become a nonconforming
use, Grantor will not cause or permit such nonconforming use to be discontinued
or abandoned without the express written consent of Beneficiary. Grantor shall
not (i) change the use of the Mortgaged Property, (ii) permit or suffer to occur
any waste on or to the Mortgaged Property or to any portion thereof, or (iii)
take any steps whatsoever to convert the Mortgaged Property, or any portion
thereof, to a condominium or cooperative form of management. Grantor will not
install or permit to be installed on the Premises any underground storage tank
without Beneficiary's prior written consent.
9. TRANSFER OR ENCUMBRANCE OF THE MORTGAGED PROPERTY.
(a) Grantor acknowledges that Beneficiary, in agreeing to make
the Loan, has examined and relied on the creditworthiness and experience of
Grantor in owning and operating properties such as the Mortgaged Property, and
that Beneficiary will continue to rely on Grantor's ownership and operation of
the Mortgaged Property as a means of maintaining the value of the Mortgaged
Property as security for repayment of the Debt. Grantor acknowledges that
Beneficiary has a valid interest in maintaining the value of the Mortgaged
Property so as to ensure that, should Grantor default in the repayment of the
Debt, Beneficiary can recover all or a portion of the Debt by a sale of the
Mortgaged Property or any part thereof. Accordingly, except as permitted in the
Loan Agreement, Grantor shall not, without the prior written consent of
Beneficiary, sell, convey, alienate, mortgage, encumber, pledge or otherwise
transfer the Mortgaged Property or any part thereof or permit the Mortgaged
Property or any part thereof to be sold, conveyed, alienated, mortgaged,
encumbered, pledged or otherwise transferred.
(b) A sale, conveyance, alienation, mortgage, encumbrance,
pledge or transfer within the meaning of this Paragraph 9 shall be deemed to
include: (i) an installment sales agreement wherein Grantor agrees to sell the
Mortgaged Property or any part thereof or any interest therein for a price to be
paid in installments; (ii) an agreement by Grantor leasing all or a substantial
part of the Mortgaged Property for other than actual occupancy by a space tenant
thereunder, or a sale, assignment or other transfer of, or the grant of a
security interest in, Grantor's right, title and interest in and to any Leases
or any Rents; (iii) if Grantor or any general partner or managing member of
Grantor is a corporation, the voluntary or involuntary sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer of such corporation's
stock (or the stock of any corporation directly or indirectly controlling such
corporation by operation of law or otherwise) or the creation or issuance of new
stock in one or a series of transactions; (iv) if Grantor or any general partner
or managing member of Grantor is a limited or general partnership, joint venture
or limited liability company, the change, removal, resignation or addition of a
partner, joint venturer or member or the sale, conveyance, alienation, mortgage,
encumbrance, pledge or transfer of the partnership interest of any partner or
the sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of
the interest of any joint venturer or member; (v) if Grantor is a limited or
general partnership, joint venture, limited liability company, trust, nominee
trust, tenancy in common or other unincorporated form of business association or
form of ownership interest, the voluntary or involuntary sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer of a controlling interest
of any person having a direct legal or beneficial ownership in
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Grantor, including any legal or beneficial interest in any constituent partner
or member of Grantor; (vi) any instrument subjecting the Mortgaged Property to a
condominium regime or transferring ownership to a cooperative corporation; and
(vii) the dissolution or termination of Grantor or any general partner or
managing member of Grantor or the merger or consolidation of Grantor or any
general partner or managing member of Grantor with any other person.
(c) Beneficiary shall not be required to demonstrate any
actual impairment of its security or any increased risk of default hereunder in
order to declare the Debt immediately due and payable upon Grantor's sale,
conveyance, alienation, mortgage, encumbrance, pledge or transfer of the
Mortgaged Property or any part thereof without Beneficiary's consent. This
provision shall apply to every sale, conveyance, alienation, mortgage,
encumbrance, pledge or transfer of the Mortgaged Property or any part thereof
regardless of whether voluntary or not, or whether or not Beneficiary has
consented to any previous sale, conveyance, alienation, mortgage, encumbrance,
pledge or transfer of the Mortgaged Property or any part thereof.
(d) Beneficiary's consent to one sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the Mortgaged Property or any part
thereof shall not be deemed to be a waiver of Beneficiary's right to require
such consent to any future occurrence of the same. Any sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property
or any part thereof made in contravention of this Paragraph shall be null and
void and of no force and effect.
10. CHANGES IN LAWS REGARDING TAXATION. If any law is enacted
or adopted or amended after the date of this Deed of Trust which deducts the
Debt from the value of the Mortgaged Property for the purpose of taxation or
which imposes a tax, either directly or indirectly, on the Debt or Beneficiary's
interest in the Mortgaged Property, Grantor will pay such tax, with interest and
penalties thereon, if any. In the event Beneficiary is advised by counsel chosen
by it that the payment of such tax or interest and penalties by Grantor would be
unlawful or taxable to Beneficiary or unenforceable or provide the basis for a
defense of usury, then, in any such event, Beneficiary shall have the option, by
written notice to Grantor of not less than ninety (90) days, to declare the Debt
immediately due and payable.
11. NO CREDITS ON ACCOUNT OF THE DEBT. Grantor will not claim
or demand or be entitled to any credit or credits on account of the Debt for any
part of the Taxes or Other Charges assessed against the Mortgaged Property, or
any part thereof, and no deduction shall otherwise be made or claimed from the
assessed value of the Mortgaged Property, or any part thereof, for real estate
tax purposes by reason of this Deed of Trust or the Debt. In the event such
claim, credit or deduction shall be required by law, Beneficiary shall have the
option, by written notice of not less than ninety (90) days, to declare the Debt
immediately due and payable.
12. DOCUMENTARY STAMPS. If at any time the United States of
America, any State thereof or any subdivision of any such State shall require
revenue or other stamps to be affixed to the Note or this Deed of Trust, or
impose any intangible tax or
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any other tax or charge on the same, Grantor will pay for the same, with
interest and penalties thereon, if any.
13. CONTROLLING AGREEMENT. It is expressly stipulated and
agreed to be the intent of Grantor and Beneficiary at all times to comply with
applicable state law or applicable United States federal law (to the extent that
it permits Beneficiary to contract for, charge, take, reserve or receive a
greater amount of interest than under state law) and that this Paragraph 13
(with the similar provision contained in the Note) shall control every other
covenant and agreement in this Deed of Trust and the other Loan Documents. If
the applicable law (state or federal) is ever judicially interpreted so as to
render usurious any amount called for under the Note or under any of the other
Loan Documents or contracted for, charged, taken, reserved or received with
respect to the Debt, or if Beneficiary's exercise of the option to accelerate
the maturity of the Note or any prepayment by Grantor results in Grantor having
paid any interest in excess of that permitted by applicable law, then it is
Grantor's and Beneficiary's express intent that all excess amounts theretofore
collected by Beneficiary shall be credited on the principal balance of the Note
and all other Debt and the provisions of the Note, this Deed of Trust and the
other Loan Documents immediately be deemed reformed and the amounts thereafter
collectible hereunder and thereunder reduced, without the necessity of the
execution of any new documents, so as to comply with the applicable law, but so
as to permit the recovery of the fullest amount otherwise called for hereunder
or thereunder. All sums paid or agreed to be paid to Beneficiary for the use,
forbearance or detention of the Debt shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the full
stated term of the Debt until payment in full so that the rate or amount of
interest on account of the Debt does not exceed the maximum lawful rate from
time to time in effect and applicable to the Debt for so long as the Debt is
outstanding.
14. PERFORMANCE OF OTHER AGREEMENTS. Grantor shall observe and
perform each and every term to be observed or performed by Grantor pursuant to
the terms of any agreement or recorded instrument affecting or pertaining to the
Mortgaged Property.
15. FURTHER ACTS, ETC. Grantor will, at the cost of Grantor,
and without expense to Beneficiary, do, execute, acknowledge and deliver all and
every such further acts, deeds, conveyances, mortgages, assignments, notices of
assignment, Uniform Commercial Code financing statements or continuation
statements, transfers and assurances as Beneficiary shall, from time to time,
reasonably require, for the better assuring, conveying, assigning, transferring
and confirming unto Beneficiary the property and rights hereby granted,
bargained, sold, conveyed, assigned, transferred and mortgaged or intended now
or hereafter so to be, or which Grantor may be or may hereafter become bound to
convey or assign to Beneficiary, or for carrying out the intention or
facilitating the performance of the terms of this Deed of Trust or for filing,
registering or recording this Deed of Trust or for facilitating the sale and
transfer of the Loan and the Loan Documents as described in Section 9.1 of the
Loan Agreement. Grantor, on demand, will execute and deliver, and Grantor hereby
authorizes Beneficiary to execute in the name of Grantor or without the
signature of Grantor to the extent
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Beneficiary may lawfully do so, one or more financing statements, chattel
mortgages or other instruments to evidence more effectively the security
interest of Beneficiary in the Mortgaged Property. Upon foreclosure, the
appointment of a receiver or any other relevant action, Grantor will, at the
cost of Grantor and without expense to Beneficiary, cooperate fully and
completely to effect the assignment or transfer of any license, permit,
agreement or any other right necessary or useful to the operation of the
Mortgaged Property. Grantor grants to Beneficiary an irrevocable power of
attorney coupled with an interest for the purpose of exercising and perfecting
any and all rights and remedies available to Beneficiary at law and in equity,
including, without limitation, such rights and remedies available to Beneficiary
pursuant to this Paragraph.
16. RECORDING OF DEED OF TRUST, ETC. Grantor forthwith upon
the execution and delivery of this Deed of Trust and thereafter, from time to
time, will cause this Deed of Trust and any security instrument creating a lien
or security interest or evidencing the lien hereof upon the Mortgaged Property
and each instrument of further assurance to be filed, registered or recorded in
such manner and in such places as may be required by any present or future law
in order to publish notice of and fully to protect the lien or security interest
hereof upon, and the interest of Beneficiary in, the Mortgaged Property. Grantor
will pay all filing, registration or recording fees, and all expenses incident
to the preparation, execution and acknowledgment, of this Deed of Trust, any
deed of trust supplemental hereto, any security instrument with respect to the
Mortgaged Property and any instrument of further assurance, and all federal,
state, county and municipal taxes, duties, imposts, assessments and charges
arising out of or in connection with the execution and delivery of this Deed of
Trust, any deed of trust supplemental hereto, any security instrument with
respect to the Mortgaged Property or any instrument of further assurance, except
where prohibited by law so to do. Grantor shall hold harmless and indemnify
Beneficiary, its successors and assigns, against any liability incurred by
reason of the imposition of any tax on the making and recording of this Deed of
Trust.
17. REPORTING REQUIREMENTS. Grantor agrees to give prompt
notice to Beneficiary of the insolvency or bankruptcy filing of Grantor or any
general partner or managing member of Grantor.
18. EVENTS OF DEFAULT. The Debt shall become immediately due
and payable at the option of Beneficiary upon the happening of any one or more
of the following events of default (each, an "EVENT OF DEFAULT"):
(a) any portion of the Debt is not paid when due;
(b) except as expressly permitted by the terms of the Loan
Agreement, any of the Taxes or Other Charges are not paid before delinquency and
payable;
(c) the Policies (as defined in the Loan Agreement) are not
kept in full force and effect, or certified copies of the Policies are not
delivered to Beneficiary within ten (10) days of request;
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(d) except as expressly permitted in Section 6.1(j) of the
Loan Agreement and this Deed of Trust, Grantor transfers or encumbers any
portion of the Mortgaged Property or any interest therein without Beneficiary's
prior written consent;
(e) any representation or warranty of Grantor made herein or
in any other Loan Document or in any certificate, report, financial statement or
other instrument, agreement or document furnished to Beneficiary shall have been
false or misleading in any material respect when made; provided, however, if
such false or misleading representation or warranty is susceptible of being
cured within thirty (30) days, the same shall be an Event of Default hereunder
only if the same is not cured within a reasonable time not to exceed thirty (30)
days after notice from Lender;
(f) Grantor shall make an assignment for the benefit of
creditors;
(g) a receiver, liquidator or trustee shall be appointed for
Grantor or Grantor shall be adjudicated a bankrupt or insolvent, or any petition
for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy
law, or any similar federal or state law, shall be filed by or against,
consented to or acquiesced in by Grantor or any proceeding for the dissolution
or liquidation of Grantor shall be instituted; PROVIDED, however, that if such
appointment, adjudication, petition or proceeding was involuntary and not
consented to by Grantor, then the same shall be an Event of Default hereunder
only if the same is not discharged, stayed or dismissed within sixty (60) days
after the date of such appointment or adjudication, the date such petition is
first filed or the date such proceeding is instituted, as the case may be;
(h) Grantor shall be in default under any other deed of trust
or security agreement covering any part of the Mortgaged Property whether it be
superior or junior in lien to this Deed of Trust;
(i) the Mortgaged Property becomes subject to any mechanic's,
materialman's or other lien except a lien for local real estate taxes and
assessments not then due and payable, (subject to Section 5.1(b) of the Loan
Agreement in the case of real estate taxes and assessments), unless a corporate
surety bond in form and with sureties satisfactory to Beneficiary, cash or other
security satisfactory to Beneficiary is posted therefor within sixty (60) days
after the filing of such lien, but in any event prior to the commencement of any
action to foreclose such lien, and such lien is removed from the Mortgaged
Property within such sixty (60) days;
(j) Grantor fails to cure properly any violations of laws or
ordinances affecting or which may be interpreted to affect the Mortgaged
Property within thirty (30) days after Grantor first receives notice of any such
violations; PROVIDED, however, that if such violation is susceptible of cure but
cannot reasonably be cured within such 30-day period and PROVIDED further that
Grantor shall have commenced to cure such violation within such 30-day period
and thereafter diligently and expeditiously proceeds to cure the same and
PROVIDED further that any governmental authority having jurisdiction over the
subject matter of such violation consents to a longer cure period, such 30-day
period shall
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be extended for such time as is reasonably necessary for Grantor in the exercise
of due diligence to cure such violation, such additional period not to exceed
ninety (90) days;
(k) except as expressly permitted in this Deed of Trust or the
Loan Agreement, the actual or threatened material alteration, improvement,
demolition or removal of any of the Improvements without the prior written
consent of Beneficiary;
(l) without Beneficiary's prior consent and except as
permitted in the Loan Agreement, (i) the property manager for the Mortgaged
Property under the Property Management Agreement (or any successor property
management agreement) resigns or is removed, or (ii) the ownership, management
or control of such property manager is transferred to another person or entity,
or (iii) there is any material change in the Property Management Agreement (or
any successor property management agreement);
(m) except as otherwise permitted in the Loan Agreement, a
default has occurred and continues beyond any applicable cure period under the
Property Management Agreement (or any property successor management agreement)
if such default permits the manager to terminate or cancel the Property
Management Agreement (or any successor property management agreement);
(n) Grantor ceases to do business as retail shopping centers
on the Mortgaged Property or terminates such business for any reason whatsoever
(other than temporary cessation in connection with any renovations to the
Mortgaged Property);
(o) Grantor fails to cure a default under any other term,
covenant or provision of this Deed of Trust not specified in clauses (a) through
(n) above, within ten (10) days after Grantor first receives notice of such
default in the case of any default which can be cured by the payment of a sum of
money only or within thirty (30) days after Grantor first receives notice of
such default in the case of any other default; PROVIDED, however, that if such
non-monetary default is susceptible of cure but cannot reasonably be cured
within such 30-day period and PROVIDED further that Grantor shall have commenced
to cure such default within such 30-day period and thereafter diligently and
expeditiously proceeds to cure the same, such 30-day period shall be extended
for such time as is reasonably necessary for Grantor in the exercise of due
diligence to cure such default, such additional period not to exceed ninety (90)
days; or
(p) Grantor shall be in default under any term, covenant or
provision of the Note, the Loan Agreement, the Assignment or any of the other
Loan Documents beyond any applicable cure periods contained in such documents,
whether as to Grantor or the Mortgaged Property, or any other such event shall
occur or condition shall exist, if the effect of such event or condition is to
accelerate the maturity of any portion of the Debt or to permit Beneficiary to
accelerate the maturity of all or any portion of the Debt.
19. LATE PAYMENT CHARGE. If any portion of the Debt is not
paid on the date on which it is due, Grantor shall pay to Beneficiary upon
demand an amount equal to the lesser of three percent (3%) of such unpaid
portion of the Debt or the maximum amount permitted by applicable law in order
to defray a portion of the
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expenses incurred by Beneficiary in handling and processing such delinquent
payment and to compensate Beneficiary for the loss of the use of such delinquent
payment, and such amount shall be secured by this Deed of Trust.
(b) Upon the occurrence of an Event of Default, Grantor shall
pay to Beneficiary interest on the entire unpaid principal amount of the Note
and any other amounts due (including interest to the extent permitted by
applicable law) at the Default Rate (as defined in the Loan Agreement) and all
interest payable pursuant to this paragraph shall be secured by this Mortgage.
20. RIGHT TO CURE DEFAULTS. Upon the occurrence of any Event
of Default or if Grantor fails to make any payment or to do any act as herein
provided, Beneficiary may, but without any obligation to do so and without
notice to or demand on Grantor and without releasing Grantor from any obligation
hereunder, make or do the same in such manner and to such extent as Beneficiary
may deem necessary to protect the security hereof. Beneficiary is authorized to
enter upon the Mortgaged Property for such purposes or appear in, defend or
bring any action or proceeding to protect its interest in the Mortgaged Property
or to foreclose this Deed of Trust or collect the Debt, and the cost and expense
thereof (including reasonable attorneys' fees and disbursements to the extent
permitted by law), with interest at the Default Rate (as defined in the Loan
Agreement) for the period from the date such cost or expense was incurred by
Beneficiary to the date of payment to Beneficiary, shall constitute a portion of
the Debt, shall be secured by this Deed of Trust and the other Loan Documents
and shall be due and payable to Beneficiary upon demand.
21. REMEDIES.
(a) Subject to Section 9.4 of the Loan Agreement and the
requirements of applicable law, upon the occurrence of any Event of Default,
Beneficiary shall have the right, forthwith, at Beneficiary's election, by and
through the Trustee or otherwise, to exercise any and all rights and remedies
granted to Beneficiary under this Deed of Trust, the Note, the Loan Agreement or
any of the other Loan Documents or otherwise available to Beneficiary at law or
in equity, all of which rights and remedies shall be cumulative and not
exclusive, and which shall include, without limitation, the following:
(i) Beneficiary shall have the right forthwith, at
Beneficiary's election, by and through the Trustee or otherwise, to
declare the entire indebtedness of Grantor under the Note immediately
due and payable; and, in any such case, the prepayment premium, if any,
which would have been applicable to a voluntary prepayment of such
indebtedness at the time of such declaration by Beneficiary shall be
treated as part of the indebtedness secured hereby and added to and
become a part of the principal thereof.
(ii) Beneficiary shall have the right, forthwith,
at Beneficiary's election, by and through the Trustee or otherwise, and
without further notice or demand and without the commencement of any
action to foreclose this Deed of Trust, to enter immediately upon and
take possession of the Mortgaged Property
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without further consent or assignment by Grantor, with the right to
lease the Mortgaged Property, or any part thereof, and to collect and
receive all of the Rents and all other amounts past due, due or to
become due to Grantor by reason of Grantor's ownership of the Mortgaged
Property, and to apply the same, after the payment of all necessary
charges and expenses in connection with the operation of the Mortgaged
Property (including any managing agent's commission, at the option of
Beneficiary), on account of interest and principal amortization under
the Note, taxes, payments in lieu of taxes, water and sewer charges,
assessments and insurance premiums with respect to the Mortgaged
Property, and any advance made by Beneficiary for improvements,
alterations or repairs to the Mortgaged Property or on account of any
other Debt hereby secured. Grantor hereby irrevocably appoints
Beneficiary as Grantor's attorney-in-fact to institute summary
proceedings against any tenant, licensee, concessionaire or other
occupant of any portion of the Mortgaged Property who shall fail to
comply with the provisions of any covenant, agreement or condition
applicable to the possession or occupancy of the Mortgaged Property by
such tenant, licensee, concessionaire or other occupant. If Grantor or
any other person claiming by, through or under Grantor is occupying all
or any part of the Mortgaged Property, it is hereby agreed that Grantor
and each such other person shall, at the option of Beneficiary, either
immediately surrender possession of the Mortgaged Property to
Beneficiary and vacate the part of the Mortgaged Property so occupied
or pay a reasonable rental for the use thereof, monthly in advance, to
Beneficiary.
(iii) Beneficiary shall have the right forthwith,
at Beneficiary's election, by and through the Trustee or otherwise, to
sell or offer for sale the Mortgaged Property in such portions, order
and parcels as Beneficiary may determine, with or without having first
taken possession of same, at public auction for cash or cash
equivalent, including, without limitation, for certified checks, bank
drafts, wire transfer funds, cashier checks and any other method of
payment which, in the sole discretion of Beneficiary, is "cash
equivalent", to the highest and best bidder during legal hours, at any
front door of the county courthouse of the county in which the Premises
are situated after having advertised and given notice of said sale,
giving the time, place and terms thereof, together with a description
of the Premises according to the laws of the state where the Mortgaged
Property is located which govern sales of land under deeds of trust in
force at the time the publication of said notice has begun. If the
Premises are situated in two or more counties or in two judicial
districts of the same county, then the Trustee shall have the power, in
case the Trustee is directed to foreclose under this Deed of Trust, to
select in which county, or judicial district, the sale of all the
Mortgaged Property shall be made, and the selection shall be binding
upon Grantor and Beneficiary and all persons claiming through or under
them, whether by contract or by law. The Trustee shall have full power
to fix the day, time and place of sale, and may sell the Mortgaged
Property in parcels or as a whole as the Trustee may deem best. The
Trustee shall have full power to conduct any sale through an agent
appointed by the Trustee for such purpose, but said appointment of
agent need not be recorded. At any such sale: (A) the Trustee shall not
be
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required to have physically present, or to have constructive possession
of, the Mortgaged Property (Grantor hereby covenanting and agreeing to
deliver to the Trustee any portion of the Mortgaged Property not
actually or constructively possessed by the Trustee immediately upon
demand by the Trustee) and the title to and right of possession of any
such Mortgaged Property shall pass to the purchaser thereof as
completely as if the same had been actually present and delivered to
the purchaser at such sale; (B) the Trustee may, from time to time,
adjourn said sale to a later date without readvertising, by giving
notice of the time and place of such continued sale at the time when
and where the Trustee shall make such adjournment; (C) each and every
recital contained in any instrument of conveyance made by the Trustee
shall conclusively establish the truth and accuracy of the matters
recited therein, including, without limitation, nonpayment of the Debt
secured by this Deed of Trust, advertisement and conduct of such sale
in the manner provided herein and otherwise by law and by appointment
of any successor Trustee hereunder; (D) any and all prerequisites to
the validity of such sale shall be conclusively presumed to have been
performed; (E) the receipt of the Trustee or of such other party making
the sale shall be a sufficient discharge to the purchaser for its or
his purchase money and no such purchaser, or its or his assigns,
successors or personal representatives, shall thereafter be obligated
to see to the application of such purchase money or be in any way
answerable for any loss, misapplication or nonapplication thereof; (F)
Grantor shall be completely and irrevocably divested of all of
Grantor's right, title, interest, claim and demand whatsoever, either
at law or in equity, in and to the property sold and such sale shall be
a perpetual bar both at law and in equity against Grantor, and against
any and all other persons claiming or to claim the Mortgaged Property
sold or any part thereof; (G) Beneficiary may be a purchaser at any
such sale; and (H) the Trustee, in Beneficiary's name or as the
attorney of Grantor (the Trustee being for that purpose by this Deed of
Trust duly and irrevocably authorized and appointed as Grantor's agent
and attorney in fact, coupled with an interest and with full power of
substitution, delegation and revocation) to make, execute, acknowledge
and deliver to the purchaser or purchasers thereof a good and
sufficient deed or deeds of the Mortgaged Property in fee simple and to
receive the proceeds of such sale or sales.
Should the Mortgaged Property be sold in one or more parcels
as permitted herein, the right of sale arising out of any Event of
Default shall not be exhausted by any one or more such sales, but other
and successive sales may be made until all of the Mortgaged Property
has been sold or until the Debt secured by this Deed of Trust has been
fully satisfied.
Grantor hereby irrevocably and unconditionally waives and
releases: (A) all benefits that might accrue to Grantor by virtue of
any present or future law exempting the Mortgaged Property from
attachment, levy or sale or execution or providing for any
appraisement, valuation, stay of execution, exemption from civil
process, redemption or extension of time for payment; (B) all notices
of any Event of Default or of the Trustee's exercise of any right,
remedy or recourse provided for hereunder or under any of the other
Loan
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Documents, (unless the Loan Documents explicitly require any such
notice to be given to Grantor; and (C) any right to a marshalling of
assets or a sale in inverse order of alienation.
(iv) Beneficiary shall have the right forthwith, at
Beneficiary's election, by and through the Trustee or otherwise, to
institute an action, suit or proceeding in equity for the specific
performance of any covenant, condition or agreement contained herein or
in any of the other Loan Documents.
(v) Beneficiary shall have the right forthwith, at
Beneficiary's election, by and through the Trustee or otherwise, to
apply for the appointment of a trustee, receiver, liquidator or
conservator of the Mortgaged Property, without notice and without
regard for the adequacy of the security for the Debt and without regard
for the solvency of Grantor or of any person, firm or other entity
liable for the payment of the Debt.
(vi) Beneficiary shall have the right forthwith, at
Beneficiary's election, by and through the Trustee or otherwise, to
notify the account debtors and obligors of any accounts, chattel paper,
negotiable instruments or other evidences of indebtedness to Grantor
included in the Mortgaged Property to pay Beneficiary directly.
(b) The proceeds of any sale made under or by virtue of this
Paragraph, together with any other sums which then may be held by Beneficiary
under this Deed of Trust, whether under the provisions of this Paragraph or
otherwise, shall be applied by Beneficiary to the payment of the Debt in such
priority and proportion as Beneficiary in its sole discretion shall deem proper.
(c) Upon any sale made under or by virtue of this Paragraph,
whether made under a power of sale or under or by virtue of judicial proceedings
or of a judgment or decree of foreclosure and sale, Beneficiary may bid for and
acquire the Mortgaged Property or any part thereof and in lieu of paying cash
therefor may make settlement for the purchase price by crediting upon the Debt
the net sales price after deducting therefrom the expenses of the sale and costs
of the action and any other sums which Beneficiary is authorized to deduct under
this Deed of Trust or by law.
(d) No recovery of any judgment by Beneficiary and no levy of
an execution under any judgment upon the Mortgaged Property or upon any other
property of Grantor shall affect in any manner or to any extent the lien of this
Deed of Trust upon the Mortgaged Property or any part thereof, or any liens,
rights, powers or remedies of Beneficiary hereunder, but such liens, rights,
powers and remedies of Beneficiary shall continue unimpaired as before.
(e) Beneficiary may resort to any remedies and the security
given by the Note, this Deed of Trust or any of the other Loan Documents, in
whole or in part, and in such portions and in such order as determined by
Beneficiary in Beneficiary's sole discretion. No such action shall in any way be
considered a waiver of any rights, benefits
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or remedies evidenced or provided by the Note, this Deed of Trust or any of the
other Loan Documents. The failure of Beneficiary to exercise any right, remedy
or option provided in the Note, this Deed of Trust or any of the other Loan
Documents shall not be deemed a waiver of such right, remedy or option or of any
covenant or obligation secured by the Note, this Deed of Trust or any of the
other Loan Documents. No acceptance by Beneficiary of any payment after the
occurrence of any Event of Default and no payment by Beneficiary of any
obligation for which Grantor is liable hereunder shall be deemed to waive or
cure any Event of Default with respect to Grantor, or Grantor's liability to pay
such obligation. No sale of all or any portion of the Mortgaged Property, no
forbearance on the part of Beneficiary and no extension of time for the payment
of the whole or any portion of the Debt, or any other indulgence given by
Beneficiary to Grantor, shall operate to release or in any manner affect the
interest of Beneficiary in the remaining Mortgaged Property or the liability of
Grantor to pay the Debt. No waiver by Beneficiary shall be effective unless it
is in writing and then only to the extent specifically stated. All costs and
expenses of Beneficiary in exercising its rights and remedies under this
Paragraph 21 (including reasonable attorneys' fees and disbursements to the
extent permitted by law) shall be paid by Grantor immediately upon notice from
Beneficiary, with interest at the Default Rate from the date incurred by
Beneficiary until repaid by Grantor, and such costs and expenses, with interest
as aforesaid, shall constitute a portion of the Debt and shall be secured by
this Deed of Trust.
(f) The interests and rights of Beneficiary under the Note,
this Deed of Trust or any of the other Loan Documents shall not be impaired by
any indulgence, including (i) any renewal, extension or modification which
Beneficiary may grant with respect to any of the Debt, (ii) any surrender,
compromise, release, renewal, extension, exchange or substitution which
Beneficiary may grant with respect to the Mortgaged Property or any portion
thereof, or (iii) any release or indulgence granted to any maker, endorser,
guarantor or surety of any of the Debt.
(g) In case Beneficiary or the Trustee, on behalf of
Beneficiary, shall have proceeded to invoke any right, remedy or recourse
permitted hereunder or under any of the other Loan Documents and shall hereafter
elect to discontinue or abandon the same for any reason, Beneficiary or the
Trustee, on behalf of Beneficiary, as applicable, shall have the unqualified
right so to do and, in such event, Grantor, Beneficiary and the Trustee shall be
restored to their former positions with respect to the Debt secured hereby, this
Deed of Trust, the Loan Documents, the Mortgaged Property and otherwise, and the
rights, remedies, recourses and powers of Beneficiary and the Trustee, on behalf
of Beneficiary, shall continue as if the same had never been invoked.
22. RIGHT OF ENTRY. In addition to any other rights or
remedies granted under this Deed of Trust, Beneficiary and its agents shall have
the right to enter and inspect the Mortgaged Property at any reasonable time
upon reasonable notice under the circumstances until the Debt is paid in full.
The cost of such inspections shall be borne by Grantor should Beneficiary
determine that an Event of Default exists, including the cost of all follow up
or additional investigations or inquiries deemed reasonably necessary by
Beneficiary. The cost of such inspections, if not paid for by Grantor
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following demand, may be added to the principal balance of the sums due under
the Note and this Deed of Trust and shall bear interest thereafter until paid at
the Default Rate.
23. SECURITY AGREEMENT.
(a) This Deed of Trust is both a real property deed of trust
and a "security agreement" within the meaning of the Uniform Commercial Code.
The Mortgaged Property includes both real and personal property and all other
rights and interests, whether tangible or intangible in nature, of Grantor in
the Mortgaged Property. Grantor by executing and delivering this Deed of Trust
has granted and hereby grants to Beneficiary, as security for the Debt, a
security interest in the Mortgaged Property to the full extent that the
Mortgaged Property may be subject to the Uniform Commercial Code (said portion
of the Mortgaged Property so subject to the Uniform Commercial Code being
referred to in this Paragraph 23 as the "COLLATERAL"). Grantor hereby agrees
with Beneficiary to execute and deliver to Beneficiary, in form and substance
satisfactory to Beneficiary, such financing statements and such further
assurances as Beneficiary may from time to time reasonably consider necessary to
create, perfect and preserve Beneficiary's security interest herein granted.
This Deed of Trust shall also constitute a "fixture filing" for the purposes of
the Uniform Commercial Code. As such, this Deed of Trust covers all items of the
Collateral that are or are to become fixtures. Information concerning the
security interest herein granted may be obtained from the parties at the
addresses of the parties set forth in the first paragraph of this Deed of Trust.
If an Event of Default shall occur, Beneficiary, in addition to any other rights
and remedies which it may have, shall have and may exercise, immediately and
without demand, any and all rights and remedies granted to a secured party upon
default under the Uniform Commercial Code, including, without limiting the
generality of the foregoing, the right to take possession of the Collateral or
any part thereof and to take such other measures as Beneficiary may deem
necessary for the care, protection and preservation of the Collateral. Upon
request or demand of Beneficiary, Grantor shall at its expense assemble the
Collateral and make it available to Beneficiary at a convenient place acceptable
to Beneficiary. Grantor shall pay to Beneficiary on demand any and all expenses,
including attorneys' fees and disbursements, incurred or paid by Beneficiary in
protecting its interest in the Collateral and in enforcing its rights hereunder
with respect to the Collateral. The proceeds of any disposition of the
Collateral, or any part thereof, may be applied by Beneficiary to the payment of
the Debt in such priority and proportions as Beneficiary in its sole discretion
shall deem proper. In the event of any change in name, identity or structure of
any Grantor, such Grantor shall notify Beneficiary thereof and promptly after
request shall execute, file and record such Uniform Commercial Code forms as are
necessary to maintain the priority of Beneficiary's lien upon and security
interest in the Collateral, and shall pay all expenses and fees in connection
with the filing and recording thereof. If Beneficiary shall require the filing
or recording of additional Uniform Commercial Code forms or continuation
statements, Grantor shall, promptly after request, execute, file and record such
Uniform Commercial Code forms or continuation statements as Beneficiary shall
deem necessary, and shall pay all expenses and fees in connection with the
filing and recording thereof. Grantor hereby irrevocably appoints Beneficiary as
its attorney-in-fact, coupled with an interest, to file with the appropriate
public office on its behalf any financing or other statements signed only by
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Beneficiary, as secured party, in connection with the Collateral covered by this
Deed of Trust.
(b) Upon an Event of Default Beneficiary shall have the right,
at Beneficiary's opinion, by and through the Trustee or otherwise:
(i) To proceed as to both the real and personal
property covered by this Deed of Trust in accordance with Beneficiary's
rights and remedies in respect of said real property, in which event
(A) the provisions of the Uniform Commercial Code otherwise applicable
to sale of the Collateral shall not apply, and (B) the sale of the
Collateral in conjunction with and as one parcel with said real
property (or any portion thereof) shall be deemed to be a commercially
reasonable manner of sale; or
(ii) To proceed as to the Collateral separately
from the Premises and the Improvements, in which event the requirement
of reasonable notice shall be met by mailing notice of the sale,
postage prepaid, to Grantor or any other person entitled thereto at
least ten (10) days before the time of the sale or other disposition of
any of the Collateral.
24. ACTIONS AND PROCEEDINGS. Beneficiary has the right to
appear in and defend any action or proceeding brought with respect to the
Mortgaged Property and to bring any action or proceeding, in the name and on
behalf of Grantor, which Beneficiary, in its sole discretion, decides should be
brought to protect their interest in the Mortgaged Property. Beneficiary shall,
at its option, be subrogated to the lien of any mortgage or other security
instrument discharged in whole or in part by the Debt, and any such subrogation
rights shall constitute additional security for the payment of the Debt.
25. WAIVER OF SETOFF AND COUNTERCLAIM. All amounts due under
this Deed of Trust, the Note and the other Loan Documents shall be payable
without setoff, counterclaim (except for compulsory counterclaims), or any
deduction whatsoever. Grantor hereby waives the right to assert a setoff,
counterclaim (except on compulsory counterclaims) or deduction in any action or
proceeding in which Beneficiary is a participant, or arising out of or in any
way connected with this Deed of Trust, the Note, any of the other Loan
Documents, or the Debt.
26. RECOVERY OF SUMS REQUIRED TO BE PAID. Beneficiary shall
have the right from time to time to take action to recover any sum or sums which
constitute a part of the Debt as the same become due, without regard to whether
or not the balance of the Debt shall be due, and without prejudice to the right
of Beneficiary thereafter to bring an action of foreclosure, or any other
action, for a default or defaults by Grantor existing at the time such earlier
action was commenced.
27. MARSHALLING AND OTHER MATTERS.
(a) Grantor hereby waives, to the extent permitted by law, the
benefit of all appraisement, valuation, stay, extension, reinstatement and
redemption laws now or hereafter in force and all rights of marshalling in the
event of any sale hereunder of the
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Mortgaged Property or any part thereof or any interest therein. Further, Grantor
hereby expressly waives any and all rights of redemption from sale under any
order or decree of foreclosure of this Deed of Trust on behalf of Grantor and on
behalf of each and every person acquiring any interest in or title to the
Mortgaged Property subsequent to the date of this Deed of Trust and on behalf of
all persons to the extent permitted by applicable law. To the extent permitted
by law, Grantor shall not have or assert any right under any statute or rule of
law pertaining to the exemption of homestead or other exemption under any
federal, state or local law now or hereafter in effect, the administration of
estates of decedents or other matters whatever to defeat, reduce or affect the
right of Beneficiary under the terms of this Deed of Trust to a sale of the
Mortgaged Property or any part thereof, for the collection of the Debt without
any prior or different resort for collection, or the right of Beneficiary under
the terms of this Deed of Trust to the payment of the Debt out of the proceeds
of sale of the Mortgaged Property or any part thereof in preference to every
other claimant whatever. Further, Grantor hereby knowingly, intentionally and
voluntarily waives, releases, relinquishes and forever forgoes all present and
future statutes of limitations as a defense to any action to enforce the
provisions of this Deed of Trust or to collect any of the Debt secured hereby to
the fullest extent permitted by law.
(b) Grantor acknowledges and agrees that the lien of this Deed
of Trust shall be absolute and unconditional and shall not in any manner be
affected or impaired by any acts or omissions whatsoever of Beneficiary and,
without limiting the generality of the foregoing, the lien hereof shall not be
impaired by any acceptance by Beneficiary of any other security for any portion
of the Debt, or by any failure, neglect or omission on the part of Beneficiary
to realize upon or protect any portion of the Debt or any collateral security
therefor. The lien of this Deed of Trust shall not in any manner be impaired or
affected by any release (except as to the property released), sale, pledge,
surrender, compromise, settlement, renewal, extension, indulgence, alteration,
changing, modification or disposition of any portion of the Debt or of any of
the collateral security therefor, and Beneficiary may foreclose, or exercise any
other remedy available to Beneficiary, without first exercising or enforcing any
of its remedies under this Deed of Trust and any exercise of the rights and
remedies of Beneficiary hereunder shall not in any manner impair the Debt or any
of Beneficiary's rights and remedies hereunder.
28. HAZARDOUS SUBSTANCES. Grantor hereby represents and
warrants to Beneficiary that except as set forth in the environmental report
delivered to Beneficiary on the Closing Date in connection with the closing of
the Loan: (a) except where the failure to comply is not reasonably likely to
cause a Material Adverse Change, the Mortgaged Property is in full compliance
with all local, state, federal and other governmental authority statutes,
ordinances, codes, orders, decrees, laws, rules and regulations pertaining to or
imposing liability or standards of conduct concerning environmental regulation,
contamination or clean-up, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, the
Resource Conservation and Recovery Act of 1976, as amended, the Emergency
Planning and Community Right-to-Know Act of 1986, as amended, the Hazardous
Substances Transportation Act, as amended, the Solid Waste Disposal Act, as
amended, the Clean Water Act, as amended, the Clean Air Act, as amended, the
Toxic
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Substance Control Act, as amended, the Safe Drinking Water Act, as amended, the
Occupational Safety and Health Act, as amended, any state super-lien and
environmental clean-up statutes and all regulations, orders and guidelines
adopted in respect of the foregoing laws, whether presently in force or coming
into being and/or effectiveness hereafter (collectively, "ENVIRONMENTAL LAWS");
(b) the Mortgaged Property is not subject to any private or governmental lien or
judicial or administrative notice or action or inquiry, investigation or claim
relating to hazardous and/or toxic, dangerous and/or regulated, substances,
wastes, materials, raw materials which include hazardous constituents,
pollutants or contaminants, including, without limitation, asbestos or any
substance or material containing asbestos, petroleum, tremolite, anthlophylie,
actinolite or polychlorinated biphenyls and any other substances or materials
which are included under or regulated by Environmental Laws or which are
considered by scientific opinion to be otherwise dangerous in terms of the
health, safety or welfare of humans (collectively, "HAZARDOUS SUBSTANCES"); (c)
to the best knowledge of Grantor, no Hazardous Substances are or have been
(including the period prior to Grantor's acquisition of the Mortgaged Property)
released, discharged, generated, treated, disposed of or stored on, incorporated
in, or removed or transported from the Mortgaged Property other than in
compliance with all Environmental Laws; (d) to the best knowledge of Grantor, no
Hazardous Substances are present in, on or under any nearby real property which
could migrate to or otherwise affect the Mortgaged Property; and (e) to the best
knowledge of Grantor, no underground storage tanks exist on the Mortgaged
Property. So long as Grantor owns or is in possession of the Mortgaged Property,
Grantor: (i) shall keep or cause the Mortgaged Property to be kept free from
Hazardous Substances; (ii) shall keep or cause the Mortgaged Property to be kept
in compliance with all Environmental Laws; (iii) shall promptly notify
Beneficiary in writing if Grantor shall become aware of any Hazardous Substances
on or near the Mortgaged Property and/or if Grantor shall become aware that the
Mortgaged Property is in direct or indirect violation of any Environmental Laws
and/or if Grantor shall become aware of any condition on or near the Mortgaged
Property which could pose a threat to the health, safety or welfare of humans;
and (iv) shall remove such Hazardous Substances and/or cure such violations
and/or remove such threats, as applicable, as required by law (or as shall be
required by Beneficiary in the case of removal which is not required by law, but
in response to the opinion of a licensed hydrogeologist, licensed environmental
engineer or other qualified consultant engaged by Beneficiary), promptly after
Grantor becomes aware of the same, at Grantor's sole expense. The obligations
and liabilities of Grantor under this Paragraph 28 shall survive any
termination, satisfaction or assignment of this Deed of Trust and the exercise
by Beneficiary of any of its rights or remedies hereunder, including, without
limitation, the acquisition of the Mortgaged Property by foreclosure or a
conveyance in lieu of foreclosure.
29. ENVIRONMENTAL MONITORING; REMEDIAL WORK. Grantor shall
give prompt written notice to Beneficiary of: (a) any proceeding or inquiry by
any party with respect to the presence of any Hazardous Substance on, under,
from or about the Mortgaged Property; (b) all claims made or threatened by any
third party against Grantor or the Mortgaged Property relating to any loss or
injury resulting from any Hazardous Substance; and (c) Grantor's discovery of
any occurrence or condition on any real property adjoining or in the vicinity of
the
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Mortgaged Property that could cause the Mortgaged Property to be subject to
any investigation or clean-up pursuant to any Environmental Law. Grantor shall
permit Beneficiary to join and participate in, as a party if it so elects, any
legal proceedings or actions initiated with respect to the Mortgaged Property in
connection with any Environmental Law or Hazardous Substance, and Grantor shall
pay all attorneys' fees and disbursements incurred by Beneficiary in connection
therewith. Upon Beneficiary's request, at any time and from time to time while
this Deed of Trust is in effect, Grantor shall provide, at Grantor's sole
expense, an inspection or audit of the Mortgaged Property prepared by a licensed
hydrogeologist, a licensed environmental engineer or other qualified consultant
approved by Beneficiary indicating the presence or absence of Hazardous
Substances and/or the violation or threatened violation of any Environmental
Laws at, on, in, under or near the Mortgaged Property; PROVIDED, however, that
Beneficiary may not require Grantor to provide such inspection or audit unless:
(i) Beneficiary is required by law to obtain such inspection or audit, (ii) such
inspection or audit is requested by Beneficiary in conjunction with a
foreclosure or other enforcement proceeding under the Loan Documents, or (iii)
Beneficiary has determined (in the exercise of its good faith judgment) that
reasonable cause exists for the performance of an environmental inspection or
audit of the Mortgaged Property. If Grantor fails to provide any such inspection
or audit within sixty (60) days after such request, Beneficiary may order same,
and Grantor hereby grants to Beneficiary and its employees and agents access to
the Mortgaged Property and a license to undertake such inspection or audit. The
cost of such inspection or audit shall be added to the Debt and shall bear
interest thereafter until paid at the Default Rate. In the event that any
environmental site assessment report prepared in connection with such inspection
or audit recommends that an operations and maintenance plan be implemented for
any Hazardous Substance, Grantor shall cause such operations and maintenance
plan to be prepared and implemented at Grantor's expense upon request of
Beneficiary. In the event that any investigation, testing, assessment, audit,
site monitoring, containment, clean-up, removal, restoration or other work of
any kind is reasonably necessary or desirable under an applicable Environmental
Law or otherwise required under this Deed of Trust in connection with any
Hazardous Substance (the "REMEDIAL WORK"), Grantor shall commence and thereafter
diligently prosecute to completion all such Remedial Work within thirty (30)
days after written demand by Beneficiary for performance thereof (or such
shorter period of time as may be required under applicable law). All Remedial
Work shall be performed by contractors approved in advance by Beneficiary and
under the supervision of a consulting engineer approved by Beneficiary. All
costs and expenses of such Remedial Work shall be paid by Grantor, including,
without limitation, Beneficiary's reasonable attorneys' fees and disbursements
incurred in connection with monitoring or review of such Remedial Work. In the
event Grantor shall fail to timely commence, or cause to be commenced, or fail
to diligently prosecute to completion, such Remedial Work, Beneficiary may, but
shall not be required to, cause such Remedial Work to be performed, and all
costs and expenses thereof, or incurred in connection therewith, shall be added
to the Debt and shall bear interest thereafter until paid at the Default Rate.
30. HANDICAPPED ACCESS.
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(a) Grantor agrees that the Mortgaged Property shall at all
times strictly comply to the extent applicable with the requirements of the
Americans with Disabilities Act of 1990, the Fair Housing Amendments Act of
1988, all state and local laws and ordinances related to handicapped access and
all rules, regulations and orders issued pursuant thereto, including, without
limitation, the Americans with Disabilities Act Accessibility Guidelines for
Buildings and Facilities (collectively, "ACCESS LAWS").
(b) Notwithstanding any provisions set forth herein or in any
other document regarding Beneficiary's approval of alterations of the Mortgaged
Property, Grantor shall not alter the Mortgaged Property in any manner which
would increase Grantor's responsibilities for compliance with the applicable
Access Laws without the prior written approval of Beneficiary. The foregoing
shall apply to tenant improvements constructed by Grantor or by any of its
tenants. Beneficiary may condition any such approval upon receipt of a
certificate of Access Law compliance from an architect, engineer or other person
acceptable to Beneficiary.
(c) Grantor agrees to give prompt written notice to
Beneficiary of the receipt by Grantor of any complaints related to violation of
any Access Laws and of the commencement of any proceedings or investigations
which relate to compliance with applicable Access Laws.
31. INDEMNIFICATION. In addition to any other indemnifications
provided herein or in the other Loan Documents, Grantor shall protect, defend,
indemnify and hold harmless Beneficiary from and against all liabilities,
obligations, claims, demands, damages, penalties, causes of action, losses,
fines, costs and expenses (including, without limitation, reasonable attorneys'
fees and disbursements), imposed upon or incurred by or asserted against
Beneficiary (other than as a direct result of Beneficiary's fraud or wilful
misconduct) by reason of: (a) ownership of this Deed of Trust, the Mortgaged
Property or any interest therein or receipt of any Rents; (b) any accident,
injury to or death of persons or loss of or damage to property occurring in, on
or about the Mortgaged Property or any part thereof or on the adjoining
sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways;
(c) any use, nonuse or condition in, on or about the Mortgaged Property or any
part thereof or on adjoining sidewalks, curbs, adjacent property or adjacent
parking areas, streets or ways; (d) any failure on the part of Grantor to
perform or comply with any of the terms of this Deed of Trust; (e) performance
of any labor or services or the furnishing of any materials or other property in
respect of the Mortgaged Property or any part thereof; (f) the presence,
disposal, escape, seepage, leakage, spillage, discharge, emission, release or
threatened release of any Hazardous Substance at, on, in, under, from or
affecting the Mortgaged Property, any personal injury (including wrongful death)
or property damage (real or personal) arising out of or related to such
Hazardous Substance, and any lawsuit brought or threatened, settlement reached,
or government order relating to such Hazardous Substance; (g) any violation of
Environmental Laws which is based upon or in any way related to any Hazardous
Substance at, on, in, under, from or affecting the Mortgaged Property,
including, without limitation, the costs and expenses of any Remedial Work,
attorney and consultant fees and disbursements, investigation and laboratory
fees, court costs and litigation expenses; (h) any failure of the Mortgaged
Property to comply with
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any Access Laws; (i) any representation or warranty made in the Note, this Deed
of Trust or any of the other Loan Documents being false or misleading in any
material respect as of the date such representation or warranty was made; (j)
any claim by brokers, finders or similar persons claiming to be entitled to a
commission in connection with any Lease or other transaction involving the
Mortgaged Property or any part thereof or any liability asserted against
Beneficiary with respect thereto; and (k) the claims of any tenant of any
portion of the Mortgaged Property or any person acting through or under any
tenant or otherwise arising under or as a consequence of any Lease. The
indemnifications set forth in the preceding clauses (f) and (g) shall include,
without limitation, the costs of removal of the Hazardous Substances before or
after foreclosure or other taking of title to the Mortgaged Property by
Beneficiary, additional costs required to take necessary precautions to protect
against the release of Hazardous Substances into the air, any body of water or
any other public domain or onto or under any other property, costs incurred to
comply with all applicable Environmental Laws, and any diminution in the value
of the security afforded by the Mortgaged Property or any future reduction in
the sale price of the Mortgaged Property by reason of any matter set forth above
in said clauses (f) or (g) of this Paragraph 31 to the extent that such
diminution in value or such future reduction in sale price results in
Beneficiary receiving less than the full amount of all principal, interest and
other sums payable by Grantor under the Loan, but shall specifically not include
any such costs relating to Hazardous Substances which are initially placed on,
in or under the Mortgaged Property after foreclosure or other taking of title to
the Mortgaged Property by Beneficiary. Any amounts payable to Beneficiary by
reason of the application of this Paragraph shall be secured by this Deed of
Trust and shall become immediately due and payable and shall bear interest at
the Default Rate from the date loss or damage is sustained by Beneficiary until
paid. The obligations and liabilities of Grantor under this Paragraph 31 shall
survive any termination, satisfaction or assignment of this Deed of Trust and
the exercise by Beneficiary of any of its rights or remedies hereunder,
including, but not limited to, the acquisition of the Mortgaged Property by
foreclosure or a conveyance in lieu of foreclosure but only to the extent based
on facts existing at the time Grantor owned the Mortgaged Property.
32. NOTICES. Any notice, demand, statement, request or consent
made hereunder shall be sent and shall be effective in the manner set forth in
the Loan Agreement.
33. AUTHORITY. Grantor (and the undersigned representative of
Grantor, if any) represent and warrant that it (or they, as the case may be) has
full power, authority and right to execute, deliver and perform its obligations
pursuant to this Deed of Trust and to grant, bargain, sell, convey, assign,
transfer and mortgage the Mortgaged Property pursuant to the terms hereof and to
keep and observe all of the terms of this Deed of Trust on Grantor's part to be
performed; and Grantor represents and warrants that Grantor is not a "foreign
person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of
1986, as amended, and the related Treasury Department regulations, including
temporary regulations.
34. WAIVER OF NOTICE. Grantor shall not be entitled to any
notices of any nature whatsoever from Beneficiary except with respect to matters
for which the
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Loan Documents specifically and expressly provide for the giving of notice by
Beneficiary to Grantor and except with respect to matters for which Beneficiary
is required by applicable law to give notice. To the extent permitted by
applicable law, Grantor hereby expressly waives the right to receive any notice
from Beneficiary with respect to any matter for which this Deed of Trust does
not specifically and expressly provide for the giving of notice by Beneficiary
to Grantor.
35. REMEDIES OF GRANTOR. In the event that a claim or
adjudication is made that Beneficiary has acted unreasonably or unreasonably
delayed acting in any case where by law or under the Note, this Deed of Trust or
the other Loan Documents it has an obligation to act reasonably or promptly,
Beneficiary shall not be liable for any monetary damages, and Grantor's remedies
shall be limited to injunctive relief or declaratory judgment.
36. SOLE DISCRETION OF BENEFICIARY. Wherever pursuant to this
Deed of Trust, Beneficiary exercises any right given to it to consent or not
consent or approve or disapprove, or any arrangement or term is to be
satisfactory to Beneficiary, the decision of Beneficiary to consent or not
consent, to approve or disapprove or to decide that arrangements or terms are
satisfactory or not satisfactory shall be in the sole discretion of Beneficiary
and shall be final and conclusive, except as may be otherwise expressly and
specifically provided herein.
37. NON-WAIVER. The failure of Beneficiary to insist upon
strict performance of any term hereof shall not be deemed to be a waiver of any
term of this Deed of Trust. Grantor shall not be relieved of Grantor's
obligations hereunder by reason of: (a) the failure of Beneficiary to comply
with any request of Grantor or to take any action to foreclose this Deed of
Trust or otherwise enforce any of the provisions hereof or of the Note, the Loan
Agreement or any of the other Loan Documents; (b) the release, regardless of
consideration, of the whole or any part of the Mortgaged Property, or of any
person liable for the Debt or any portion thereof; or (c) any agreement or
stipulation by Beneficiary extending the time of payment or otherwise modifying
or supplementing the terms of the Note, the Loan Agreement, this Deed of Trust
or any of the other Loan Documents. Beneficiary may resort for the payment of
the Debt to any other security held by Beneficiary in such order and manner as
Beneficiary, in its sole discretion, may elect. Beneficiary may take action to
recover the Debt, or any portion thereof, or to enforce any covenant hereof
without prejudice to the right of Beneficiary thereafter to foreclosure this
Deed of Trust. The rights and remedies of Beneficiary under this Deed of Trust
shall be separate, distinct and cumulative and none shall be given effect to the
exclusion of the others. No act of Beneficiary shall be construed as an election
to proceed under any one provision herein to the exclusion of any other
provision. Beneficiary shall not be limited exclusively to the rights and
remedies herein stated but shall be entitled to every right and remedy now or
hereafter afforded at law or in equity.
38. NO ORAL CHANGE. This Deed of Trust, and any provisions
hereof, may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of Grantor or
Beneficiary, but only by an
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agreement in writing signed by the party against whom enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is
sought.
39. LIABILITY. If more than one person signs this Deed of
Trust as Grantor, the obligations and liabilities of each such person hereunder
shall be joint and several. Subject to the provisions hereof requiring
Beneficiary's consent to any transfer of the Mortgaged Property, this Deed of
Trust shall be binding upon and inure to the benefit of Grantor and Beneficiary
and their respective successors and assigns.
40. INAPPLICABLE PROVISIONS. If any term, covenant or
condition of the Note or this Deed of Trust is held to be invalid, illegal or
unenforceable in any respect, the Note and this Deed of Trust shall be construed
without such provision.
41. HEADINGS, ETC. The headings and captions of various
paragraphs of this Deed of Trust are for convenience of reference only and are
not to be construed as defining or limiting, in any way, the scope or intent of
the provisions hereof.
42. DUPLICATE ORIGINALS. This Deed of Trust may be executed in
any number of duplicate originals and each such duplicate original shall be
deemed to be an original.
43. DEFINITIONS. Unless the context clearly indicates a
contrary intent or unless otherwise specifically provided herein, words used in
this Deed of Trust may be used interchangeably in singular or plural form and
(a) the word "GRANTOR" shall mean "each Grantor and any subsequent owner or
owners of the Mortgaged Property or any part thereof or any interest therein,"
(b) the word "BENEFICIARY" shall mean "Beneficiary and any subsequent holder of
this Deed of Trust," (c) the word "NOTE" shall mean "the Note and any other
evidence of indebtedness secured by this Deed of Trust," (d) the word "PERSON"
shall include an individual, corporation, partnership, trust, limited liability
company, unincorporated association, government, governmental authority and any
other entity, (e) the words "MORTGAGED PROPERTY" shall include any portion of
the Mortgaged Property and any interest therein, and (f) the words "ATTORNEYS'
FEES" shall include any and all reasonable attorneys' fees, paralegal and law
clerk fees, including, without limitation, fees at the pre-trial, trial and
appellate levels, incurred or paid by Beneficiary in protecting its interest in
the Mortgaged Property and the Collateral and enforcing its rights hereunder.
Whenever the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural and vice versa.
44. ASSIGNMENTS. Beneficiary shall have the right to assign or
transfer its rights under this Deed of Trust without limitation. Any assignee or
transferee shall be entitled to all the benefits afforded Beneficiary under this
Deed of Trust.
45. WAIVER OF JURY TRIAL. GRANTOR HEREBY AGREES NOT TO ELECT A
TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO
TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST
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WITH REGARD TO THE NOTE, THIS DEED OF TRUST OR THE OTHER LOAN DOCUMENTS,
OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS
WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY GRANTOR,
AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO
WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. BENEFICIARY IS HEREBY
AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER BY GRANTOR.
46. MISCELLANEOUS.
(a) Any consent or approval by Beneficiary in any single
instance shall not be deemed or construed to be Beneficiary's consent or
approval in any like matter arising at a subsequent date, and the failure of
Beneficiary to promptly exercise any right, power, remedy, consent or approval
provided herein or at law or in equity shall not constitute or be construed as a
waiver of the same nor shall Beneficiary be estopped from exercising such right,
power, remedy, consent or approval at a later date. Any consent or approval
requested of and granted by Beneficiary pursuant hereto shall be narrowly
construed to be applicable only to Grantor and the matter identified in such
consent or approval and no third party shall claim any benefit by reason
thereof, and any such consent or approval shall not be deemed to constitute
Beneficiary a venturer or partner with Grantor nor shall privity of contract be
presumed to have been established with any such third party. If Beneficiary
deems it to be in its best interest to retain assistance of persons, firms or
corporations (including, without limitation, attorneys, title insurance
companies, appraisers, engineers and surveyors) with respect to a request for
consent or approval, Grantor shall reimburse Beneficiary for all out of pocket
costs (except after an Event of Default, Grantor shall reimburse Lender for all
costs and expenses) reasonably incurred in connection with the employment of
such persons, firms or corporations.
(b) Grantor covenants and agrees that during the term of this
Deed of Trust, unless Beneficiary shall have previously consented in writing:
(i) Grantor will take no action that would cause it to become an "employee
benefit plan" as defined in Section 3(3) of ERISA (as defined in the Loan
Agreement) or cause the assets of Grantor to constitute "plan assets" of one or
more such plans within the meaning of 29 C.F.R. Section 2510.3-101; and (ii)
Grantor will take no action that would cause it to be a "governmental plan"
within the meaning of Section 3(32) of ERISA and shall not engage in any
transaction which would subject Grantor to state statutes regulating investments
of, and fiduciary obligations with respect to, governmental plans. Grantor will
not sell, assign or transfer the Mortgaged Property, or any portion thereof or
interest therein, to any transferee that does not execute and deliver to
Beneficiary its written assumption of the obligations of the foregoing
covenants. Grantor further covenants and agrees to protect, defend, indemnify
and hold Beneficiary harmless from and against all loss, cost, damage and
expense (including, without limitation, all attorneys' fees and the cost of
correcting any prohibited transaction or obtaining an appropriate exemption)
that
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Beneficiary may incur as a result of Grantor's breach of the foregoing
covenants. These covenants and indemnity shall survive the extinguishment of the
lien of this Deed of Trust by foreclosure or action in lieu thereof provided
such indemnity relates to facts in existence prior to the extinguishment of the
lien of this Deed of Trust. In addition, the foregoing indemnity shall be a
recourse obligation of Grantor and shall supersede any limitations on Grantor's
liability under any of the Loan Documents.
(c) The Loan Documents contain the entire agreement between
Grantor and Beneficiary relating to or connected with the Loan. Any other
agreements relating to or connected with the Loan not expressly set forth in the
Loan Documents are null and void and superseded in their entirety by the
provisions of the Loan Documents.
(d) Time is of the essence with respect to all provisions of
this Deed of Trust.
(e) Grantor represents and warrants to Beneficiary that there
has not been committed by Grantor, to Grantor's knowledge, or any other person
in occupancy of or involved with the operation or use of the Mortgaged Property
any act or omission affording the federal government or any state or local
government the right of forfeiture as against the Mortgaged Property or any part
thereof or any monies paid in performance of Grantor's obligations under the
Note or under any of the other Loan Documents. Grantor hereby covenants and
agrees not to commit, permit or suffer to exist any act, omission or
circumstance affording such right of forfeiture. In furtherance thereof, Grantor
hereby indemnifies Beneficiary and agrees to defend and hold Beneficiary
harmless from and against any loss, damage or injury by reason of the breach of
the covenants and agreements or the representations and warranties set forth in
this Paragraph. Without limiting the generality of the foregoing, the filing of
formal charges or the commencement of proceedings against Grantor or against all
or any part of the Mortgaged Property under any federal or state law for which
forfeiture of the Mortgaged Property or any part thereof or of any monies paid
in performance of Grantor's obligations under the Loan Documents is a potential
result, shall, at the election of Beneficiary, constitute an Event of Default
hereunder without notice or opportunity to cure.
(f) The relationship between Grantor and Beneficiary under the
Loan Documents is that of a borrower and a lender only and neither of those
parties is, nor shall it hold itself out to be, the agent, employee, joint
venturer or partner of the other party.
(g) An Event of Default hereunder shall be a default under
each of the other Loan Documents.
(h) In the event the Mortgaged Property or any part thereof
shall be sold upon foreclosure as provided hereunder, to the extent permitted by
law, the sum for which the same shall have been sold shall, for purposes of
redemption (pursuant to the laws of the state where the Mortgaged Property is
located), bear interest at the Default Rate.
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(i) This document may be construed as a deed of trust,
mortgage, chattel mortgage, conveyance, assignment, security agreement, pledge,
financing statement, hypothecation or contract, or any one or more of the
foregoing, in order to fully effectuate the liens and security interests created
hereby and the purposes and agreements herein set forth.
(j) In the case of any receivership, insolvency, bankruptcy,
reorganization, arrangement, adjustment, composition or other proceedings
affecting Grantor or the general partners, members or principals in Grantor, or
their respective creditors or property, Beneficiary, to the extent permitted by
law, shall be entitled to file such proofs of claim and other documents as may
be necessary or advisable in order to have the claims of Beneficiary allowed in
such proceedings for the entire secured Debt at the date of the institution of
such proceedings and for any additional amount which may become due and payable
by Grantor hereunder after such date.
47. DEFEASANCE. Provided no Event of Default exists, this Deed
of Trust may be satisfied and discharged of record by Grantor prior to the
maturity date of the Debt set forth in Paragraph 48 below only in accordance
with the terms and provisions set forth in Sections 2.3 and 2.4 of the Loan
Agreement and upon satisfaction by Grantor of all the terms and conditions
continued therein.
48. MATURITY DATE. The maturity date of the Debt secured
hereby is the Stated Maturity Date.
49. FUTURE ADVANCES. This Deed of Trust secures such future or
additional advances as may be made by Beneficiary or the holder hereof, at its
exclusive option, to Grantor or its successors or assigns in title for any
purpose. All such future advances shall be secured to the same extent as if made
on the date of the execution of this Deed of Trust and this Deed of Trust shall
secure the payment of the Note and any additional advances made from time to
time pursuant hereto, all of said Debt being equally secured hereby and having
the same priority as any amounts advanced as of the date of this Deed of Trust.
It is agreed that any additional sum or sums advanced by Beneficiary shall be
equally secured with and have the same priority as the original Debt and shall
be subject to all of the terms, provisions and conditions of this Deed of Trust,
whether or not such additional loans or advances are evidenced by other
promissory notes or other guaranties of Grantor and whether or not identified by
a recital that it or they are secured by this Deed of Trust. It is further
agreed that any additional promissory note or guaranty or promissory notes or
guaranties executed and delivered pursuant to this Paragraph shall automatically
be deemed to be included in the term "NOTE" wherever it appears in the context
of this Deed of Trust.
50. AFTER-ACQUIRED PROPERTY. All property acquired by Grantor
after the date of this Deed of Trust which by the terms of this Deed of Trust
shall be subject to the lien and/or the security interest created hereby, shall
immediately upon the acquisition thereof by Grantor and without any further
mortgage, conveyance or assignment become subject to the lien and security
interest created by this Deed of Trust. Nevertheless, Grantor shall execute,
acknowledge, deliver and record or file, as appropriate, all and
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every such further mortgages, security agreements, financing statements,
assignments and assurances as Beneficiary shall require for accomplishing the
purposes of this Deed of Trust.
51. CERTAIN RETAIL COVENANTS. Grantor further covenants and
agrees with Beneficiary as follows:
(a) Grantor shall:
(i) promptly perform and/or observe all of the
covenants and agreements required to be performed and observed by it
under the Management Agreement and do all things necessary to preserve
and to keep unimpaired its material rights thereunder;
(ii) promptly notify Beneficiary in writing of any
default under the Management Agreement of which it is aware;
(iii) promptly deliver to Beneficiary a copy of
each financial statement, business plan, capital expenditures plan,
notice, report and estimate prepared by Grantor or Manager under the
Property Management Agreement; and
(iv) promptly enforce the performance and
observance of all of the covenants and agreements required to be
performed and/or observed by the property manager under the Property
Management Agreement.
(b) Grantor shall not, without Beneficiary's prior written
consent:
(i) surrender, terminate or cancel the Management
Agreement or otherwise replace the manager under the Management
Agreement or enter into any other management agreements with respect to
the Mortgaged Property, PROVIDED, however, that Grantor may terminate
or cancel the Management Agreement in accordance with the terms thereof
so long as, prior to such termination or cancellation, Grantor has
selected a replacement manager and such replacement manager has been
approved by Beneficiary;
(ii) reduce or consent to the reduction of the term
of the Management Agreement;
(iii) increase or consent to the increase of the
amount of any charges under the Management Agreement; or
(iv) otherwise modify, change, supplement, alter or
amend, or waive or release any of its rights and remedies under, the
Management Agreement in any material respect which adversely effects
Grantor's rights thereunder or Beneficiary's interest in the Mortgaged
Property.
(c) Grantor shall not, without Beneficiary's prior written
consent, enter into transactions with any affiliate, including, without
limitation, any arrangement
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providing for the managing of the Mortgaged Property, the rendering or receipt
of services or the purchase or sale of inventory, except any such transaction in
the ordinary course of business of Grantor if the monetary or business
consideration arising therefrom would be substantially as advantageous to
Grantor as the monetary or business consideration that Grantor would obtain in a
comparable transaction with a person not an affiliate of Grantor.
(d) Grantor will enter into and cause the manager to enter
into an assignment and subordination of the Management Agreement in form
satisfactory to Beneficiary, assigning to Beneficiary all of Grantor's rights
and interest under the Management Agreement and subordinating the manager's
interest in the Mortgaged Property and all fees and other rights of the manager
pursuant to the Management Agreement to this Deed of Trust and the other Loan
Documents and the rights of Beneficiary hereunder and thereunder. If a monetary
default or an Event of Default shall occur, Grantor, at Beneficiary's request
made at any time while such monetary default or such Event of Default is
continuing, shall terminate the Management Agreement and replace the manager
with a manager approved by Beneficiary on terms and conditions satisfactory to
Beneficiary.
52. LOCAL LAW. Annexed hereto as EXHIBIT B are additional
provisions which shall be deemed incorporated herein by reference. In the event
of any inconsistencies between the provisions of this Deed of Trust and the
provisions of EXHIBIT B, the provisions of EXHIBIT B shall control and be
binding.
53. THE TRUSTEE.
(a) It shall be no part of the duty of Trustee to see to any
recording, filing or registration of this Deed of Trust or any other instrument
in addition or supplemental hereto, or to give any notice thereof, or to see to
the payment of or be under any duty in respect of any tax or assessment or other
governmental charge which may be levied or assessed on the Mortgaged Property,
or any part thereof, or against Grantor, or to see to the performance or
observance by Grantor of any of the covenants and agreements contained herein.
Trustee shall not be responsible for the execution, acknowledgement or validity
of this Deed of Trust or of any instrument in addition or supplemental hereto or
for the sufficiency of the security purported to be created hereby, and makes no
representation in respect thereof or in respect of the rights of Beneficiary.
Trustee shall have the right to advice of counsel upon any matters arising
hereunder and shall be fully protected in relying as to legal matters on the
advice of counsel. Trustee shall not incur any personal liability hereunder
except for his own gross negligence or willful misconduct and Trustee shall have
the right to rely on any instrument, document or signature authorizing or
supporting any action taken or proposed to be taken by Trustee hereunder and
believed by Trustee in good faith to be genuine.
(b) Trustee may resign by an instrument in writing addressed
to Beneficiary, or Trustee may be removed at any time with or without cause by
an instrument in writing executed by Beneficiary. In case of the death,
resignation, removal or disqualification of Trustee, or if for any reason
Beneficiary shall deem it desirable to
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appoint a substitute or successor trustee to act instead of the herein named
trustee or any substitute or successor trustee, then Beneficiary shall have the
right and is hereby authorized and empowered to appoint a successor trustee, or
a substitute trustee, without other formality than appointment and designation
in writing executed by Beneficiary, and the authority hereby conferred shall
extend to the appointment of other successor and substitute trustees
successively until the Debt secured hereby has been paid in full, or until the
Mortgaged Property is fully and finally sold hereunder. Such appointment and
designation by Beneficiary shall be full evidence of the right and authority to
make the same and of all facts therein recited. If Beneficiary is a corporation
or association and such appointment is executed in its behalf by an officer of
such corporation or association, such appointment shall be conclusively presumed
to be executed with authority and shall be valid and sufficient without proof of
any action by the board of directors or any superior officer of the corporation
or association. Upon the making of any such appointment and designation, all of
the estate and title of Trustee in the Mortgaged Property shall vest in the
named successor or substitute Trustee, and he shall thereupon succeed to and
shall hold, possess and execute all of the rights, powers, privileges,
immunities and duties herein conferred upon Trustee; but, nevertheless, upon the
written request of Beneficiary or of the successor or substitute Trustee, the
trustee ceasing to act shall execute and deliver an instrument transferring to
such successor or substitute Trustee all of the estate and title in the
Mortgaged Property of the trustee so ceasing to act, together with all the
rights, powers, privileges, immunities and duties herein conferred upon the
Trustee, and shall duly assign, transfer and deliver any of the properties and
moneys held by said trustee hereunder to said successor or substitute Trustee.
All references herein to "TRUSTEE" shall be deemed to refer to Trustee
(including any successor or substitute appointed and designated as herein
provided) from time to time acting hereunder.
(c) Trustee shall not be liable for any error of judgement or
act done by Trustee in good faith, or be otherwise responsible or accountable
under any circumstances whatsoever (including Trustee's negligence), except for
Trustee's gross negligence or willful misconduct. Trustee shall have the right
to rely on any instrument, document or signature authorizing or supporting any
action taken or proposed to be taken by him hereunder, believed by him in good
faith to be genuine. All moneys received by Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated in any manner from any other moneys (except
to the extent required by law), and Trustee shall be under no liability for
interest on any moneys received by him hereunder. Grantor hereby ratifies and
confirms any and all acts which the herein-named Trustee or his successor or
successors, substitute or substitutes, in this trust, shall do lawfully by
virtue hereof. Grantor will reimburse Trustee for, and save him harmless
against, any and all liability and expenses which may be incurred by him in the
performance of his duties. The foregoing indemnity shall not terminate upon
discharge of the secured Debt or foreclosure, or release or other termination,
of this Deed of Trust.
54. CHOICE OF LAW. THIS DEED OF TRUST SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE WHERE THE MORTGAGED
PROPERTY IS LOCATED WITHOUT
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REGARD TO PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT THAT THE LAWS OF THE STATE OF
NEW YORK (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS) SHALL GOVERN THE
RESOLUTION OF ISSUES ARISING UNDER THE LOAN AGREEMENT AND NOTE TO THE EXTENT
THAT SUCH RESOLUTION IS NECESSARY TO THE INTERPRETATION OF THIS DEED OF TRUST.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, Grantor has executed this Deed of Trust,
Assignment of Leases and Rents and Security Agreement as of the day and year
first above written.
MORGANTOWN MALL ASSOCIATES LIMITED PARTNERSHIP,
an Ohio limited partnership
By: GLIMCHER MORGANTOWN MALL, INC., a
Delaware corporation, its general
partner
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
By: Xxxxxx X. Xxxxxxx
Senior Vice President
[CORPORATE SEAL]
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00
XXXXX XX XXX XXXX,
XXXXXX XX XXX XXXX, to-wit:
The foregoing instrument was acknowledged before me this 1st
day of September, 1998, by Xxxxxx X. Xxxxxxx, the Senior Vice President of
Glimcher Morgantown Mall, Inc., a Delaware corporation, for and on behalf of
said corporation in its capacity as the general partner of Morgantown Mall
Associates Limited Partnership, an Ohio limited partnership, for and on behalf
of said limited partnership.
My commission expires December 26, 1999.
------------------
By: /s/ Xxxxxx Xxxxxxxx
-----------------------
Notary Public
[Notarial Stamp]
This instrument was prepared by:
Xxxxxx X. Xxxxxxxxxx, Esq.
Xxxx, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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EXHIBIT A
LEGAL DESCRIPTION
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EXHIBIT B
---------
EXHIBIT B
(LOCAL LAW)
DEED OF TRUST, ASSIGNMENT OF LEASES
AND RENTS AND SECURITY AGREEMENT
MORGANTOWN MALL ASSOCIATES
LIMITED PARTNERSHIP, GUARANTOR
XXXXXXX X. XXXXXX, TRUSTEE
THE CAPITAL COMPANY OF AMERICA
LLC, BENEFICIARY
1. BENEFICIAL OWNER: At the time of the execution and
delivery of this Deed of Trust, the beneficial owner of the
Debt secured hereby is:
The Capital Company of America LLC
Two World Xxxxxxxxx Xxxxxx
Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
2. FUTURE ADVANCES: Notwithstanding the language of
Paragraph 49 of this Deed of Trust, this is not a credit line
deed of trust, and Beneficiary will not be making future
advances but, rather, will be advancing the entire Loan amount
at closing.
3. REMEDIES: The first full paragraph of Subparagraph
(a)(iii) of Paragraph 21 of this Deed of Trust is deleted and
the following eight subparagraphs included in lieu thereof: At
any time after the exercise by Beneficiary of the option to
declare the entire indebtedness of Grantor under the Note to
be immediately due and payable, Trustee, upon the written
request of Beneficiary, shall foreclose upon and sell the
Mortgaged Property to satisfy the Debt at public auction at
the front door of the courthouse of Monongalia County, West
Virginia, for cash or cash equivalent (including, without
limitation, for certified checks, bank drafts, wire transfer
funds, cashier checks and any other method of payment which,
in the sole discretion of Beneficiary, is "cash equivalent"),
in hand on the day of sale, after first giving notice of such
sale by publishing such notice in some newspaper of general
circulation published in the county wherein the Mortgaged
Property is located, or if there be no such newspaper, in a
qualified newspaper of general circulation in said county,
once a week for two successive weeks preceding the day of sale
and after giving notice to
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Grantor and to any subordinate lienholder who has previously
notified Beneficiary of the existence of a subordinate lien,
at least 20 days prior to the sale, and no other notice of
such sale shall be required. Beneficiary may be a purchaser at
any such sale.
Any sale made hereunder may be adjourned from time to
time without notice other than by oral proclamation of such
adjournment at the time and place of sale, or at the time and
place of any adjourned sale.
Out of the proceeds of such sale Trustee shall pay,
first, the costs and expenses of executing this trust,
including a reasonable fee to Trustee, or to the one so
acting, as his or their commission hereunder; second, to
Beneficiary and Trustee all moneys which they or any of them
may have paid for taxes, assessments or other governmental
charges or fees, insurance, repairs, court costs, and all
other costs and expenses incurred or paid under the provisions
of this Deed of Trust, together with interest thereon at the
Default Rate from the date of payment; third, to Beneficiary
the full amount due and unpaid on the Note and all other
indebtedness hereby secured, together with all interest
accrued thereon to date of payment; and fourth, the balance,
if any, to Grantor, its successors or assigns, upon delivery
of and surrender to the purchaser or purchasers of possession
of the Mortgaged Property less the expense, if any, of
obtaining such possession.
In the event that foreclosure proceedings are
instituted hereunder but are not completed, Trustee shall be
reimbursed for all costs and expenses and a reasonable fee for
so acting in commencing and terminating such proceedings, and
all costs and expenses so incurred by Trustee, together with
interest thereon until paid at the Default Rate, and said fee
shall all be payable by Grantor on demand, and shall be and
become a part of the Debt and shall be collectible as such.
Trustee or if more than one is named as Trustee, the
"Trustees," may act in the execution of this trust, and in the
event either of Trustees shall act alone, the authority and
power of the Trustee so acting shall be as full and complete
as if the powers and authority granted to Trustees herein
jointly had been granted to such Trustee alone; and either or
both of Trustees are hereby authorized to act by agent or
attorney in the execution of this trust. It shall not be
necessary for any Trustee to be present in person at any
foreclosure sale hereunder.
It is expressly covenanted and agreed by all parties
hereto that Beneficiary may, at any time and from time to time
hereafter, without notice, appoint and substitute another
Trustee or Trustees, corporations or persons, in place of the
Trustee herein named to execute the trust herein created. Upon
such appointment, either with or without a conveyance to said
substituted Trustee or Trustees by the Trustee herein named,
or by any substituted Trustee in case the said right of
appointment is exercised more than once, the new and
substituted Trustee or Trustees in each instance shall be
vested with all the rights, titles, interests, powers, duties
and trusts in the premises which are vested in and conferred
upon the
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Trustee herein named; and such new and substituted Trustee or
Trustees shall be considered the successors and assigns of the
Trustee who is named herein and substituted in his or her
place and stead. Each such appointment and substitution shall
be evidenced by an instrument in writing which shall recite
the parties to, and the book and page of record of, this Deed
of Trust, and the description of the real property herein
described, which instrument, executed and acknowledged by
Beneficiary or by its successors or assigns and recorded in
the office of the Clerk of the County Commission of Monongalia
County, West Virginia, shall be conclusive proof of the proper
substitution and appointment of such successor Trustee or
Trustees, and notice of such proper substitution and
appointment to all parties in interest. Notwithstanding any
other provisions hereof to the contrary, a copy of any notice
of trustee's sale under this Deed of Trust shall be served on
Grantor by certified mail, return receipt requested, directed
to Grantor at the address stated above on the first page of
this Deed of Trust or to such other address given to
Beneficiary in writing by Grantor, subsequent to the execution
and delivery of this Deed of Trust. 4. REMEDIES: Subparagraph
(b) of Paragraph 21 of this Deed of Trust is deleted. 5.
NOTICE: Paragraph 32 of this Deed of Trust is deleted and the
following language included in lieu thereof: 32. NOTICES.
Except as otherwise specifically required by the terms hereof,
any notice, demand, statement, request or consent made
hereunder shall be sent and shall be effective in the manner
set forth in the Loan Agreement.
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